Aug 042011

U.S. District Judge Donald Molloy did not mince words in a ruling issued yesterday that upheld congressional authority to delist the gray wolf in the Northern Rocky Mountains.

Gray wolves (Photo courtesy FWS)

“If I were not constrained by what I believe is binding precedent from the Ninth Circuit, and on-point precedent from other circuits,  I would hold Section 1713 is unconstitutional because it violates the Separation of Powers doctrine,” Molloy said in his order. The rider had invalidated his own decision that found the Fish and Wildlife Service's partial delisting of the Northern Rocky Mountain DPS to be unlawful.

He called the rider “a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law."

Those quotes come from a Center for Biological Diversity press release issued late yesterday after Molloy issued his verdict.

Here's another: The rider "sacrifices the spirit of the ESA to appease a vocal political faction, but the wisdom of that choice is not now before this Court.”

More excerpts on the way...


Order from CBD page

Molloy issued a 35-page order the same day after his ruling on the constitutional issue. In it, he (1) found that Defenders of Wildlife, et al.'s ESA claims over the delisting were unripe, and (2) ruled against the plaintiffs on their NEPA claims (Defenders of Wildlife v. Hall, 08-14-M-DWM, D. Mont.)

Because of the congressional action allowing the delisting of wolves in Idaho and Montana, Molloy said "[t]he only remaining wolves who might potentially be affected by the challenged 2008 10(j) rule are in three or four packs located on Wyoming's Wind River Indian Reservation.  Accordingly, the analysis of the Federal Defendants' jurisdictional challenges must be confined to the effects of 2008 10(j) rule as applies to management of the wolf populations on the Wind River Indian Reservation."

Missoulian coverage (by Rob Chaney). CBD Executive Director Kieran Suckling tells Chaney, "If you have to lose a court case, this is about the best possible way to do it. He lays out the pathway for environmentalists to appeal the decision to the Ninth Circuit and have it overturned."

AP story, which modifies CBD's headline slightly: "Judge reluctantly upholds law stripping Northern Rockies wolves of endangered species status," instead of "Court reluctantly denies challenge to congressional rider that stripped wolves of protection "

New West's take links to a story in the  Lewiston Tribune that quotes Suckling saying, "“I’ve never seen anything like it [Molloy's ruling]. He is not only intimating the wolf rider is unconstitutional and the 9th Circuit is wrong but he is laying out a road map on how to appeal his own ruling and take it all the way to the Supreme Court.”

Legal Planet analysis of the ruling and what might happen down the road (by Holly Doremus, UC-Berkeley)

Section 1713 is in this spending bill:   Here is the language:, which essentially turns back the clock to a time when Molloy's invalidation of the partial delisting had not taken place:

Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Such reissuance (including this section) shall not be subject to judicial review and shall not abrogate or otherwise have any effect on the order and judgment issued by the United States District Court for the District of Wyoming in Case Numbers 09–CV–118J and 09–CV–138J on November 18, 2010.

  Howling for Justice blog






Author info

[suffusion-the-author display='description']

  2 Responses to “Congressional delisting of wolf upheld by federal judge”

  1. Thanks–Links are fixed. The 35-pager from Molloy is here. Issued later the same day as the constitutional challenge, this order agrees with the federal defendants on NEPA and rejects the plaintiffs’ ESA claims as unripe.

    excerpt from beginning:

    It is now necessary to resolve the issues in this case, or dismiss them for lack of jurisdiction if such dismissal is warranted, because this case was the first in the long and continuing series of contentious claims over wolf management. Presently pending are cross motions for summary judgment, the Federal Defendants’ motion to dismiss, and a motion to strike an extra record exhibit. For the reasons set forth below, the Plaintiffs’ ESA claims are dismissed for lack of jurisdiction because they are not yet ripe. Plaintiffs’ motion for summary judgment is denied and the Defendants’ motion for summary judgment is granted as to the NEP A claims.

    More on the ESA claims:

    The ESA claims alleged in the Amended Complaint are not ripe because the tribes have not submitted a wolf removal plan and show no intention of doing so. The 2008 100) rule does not authorize the killing of any wolves and it does not interfere with anyone’s opportunity to comment on a proposed wolf removal plan before it is approved and takes effect. The outcome might be different if, as was the case with the Idaho wolf population prior to de1isting, a tribe had submitted a wolf removal proposal and in its draft environmental assessment the Service expressed that the preferred alternative is to approve. In the absence of such a proposal, the Court is left with an abstract dispute, the premature resolution of which would deny the Court the benefit of further factual development and could interfere with further
    administrative attempts to refine the policy.

    Due to the passage of Section 1713 and the issuance of the May 5, 20 11 delisting rule, Plaintiffs’ ESA claims (Counts I and II) are not ripe. Accordingly, those claims are dismissed for lack of jurisdiction.

  2. I think you might have linked the wrong oder in this post. I found this link to the order that addresses the constitutionality issue of HB :